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[2014] ZAGPPHC 453
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Janse Van Rensburg and Others v Kotze (A302/2012) [2014] ZAGPPHC 453 (11 March 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: A302/2012
DATE:
11/3/2013
In
the matter between:
A.C
JANSE VAN
RENSBURG
..........................................................................................
First
appellant
A.C
VAN RENSBURG
N.O
...........................................................................................
Second
appellant
E
JANSE VAN RENSBURG
N.O
.....................................................................................
Third
appellant
and
JACOBUS
KOTZE
................................................................................................................
Respondent
JUDGMENT
MAKHUBELE
AJ
INTRODUCTION
1.
On 22 August 2011, the Magistrate Bronkhorstspruit issued a rule nisi
in terms of which the appellants (respondents in the court
a quo)
were, called upon to show cause on the return date why
1.1
the respondent’s (applicant in the court a quo) possession and
control of and on the premises known as Tabakskuurwoning,
portion 16
of the farm Onbekend 398, Gauteng Province that include water and
electricity connection to his premises should not
be restored.
1.2
costs at a scale between attorney and own client, including
travelling time and costs should not be awarded.
2.
The rule nisi served as interim interdict whereupon the appellants
were prohibited from withholding water and electricity connection
to
the respondent pending finalization of the matter on the return date.
3.
Respondent was authorized by the Magistrate to employ the
services of a certified plumber and electrician to reconnect
water
and electricity to his premises if the appellants fail to fail or
refuse to comply with the order to restore same by 16:00
on 22 August
2011.
4.
The rule nisi was confirmed on 09 September 2011. The order of the
Magistrate reads as follows:
“
Die aansoeke on
mandament van spolie word toegestaan soos versoek, met kostes op ‘n
prokureur klient skaal insluitende reistyd
en reiskostes an
advokaatsfooie volgens die parameter van die Pretoria Balie Raad”
5.
In his reasons for judgment dated 30 September 2011, the magistrate
confirmed his findings of fact and reasons given ex tempore
during
his judgment. He emphasized the following:
5.1
The spoliation action was common cause.
5.2
It was unlawful and should be restored.
5.3
Whether the restoration of possession created an illegality was
irrelevant because even a thief can be spoliated. The appellants
had
a responsibility to install a legal connection.
5.4
The case of
Zulu v Minister of Works, Kwazulu and Others,
1992 (1)
ALL SA 45
D is
not applicable because the cause of action for
supply of water was ex lege whereas in this case it was contractual.
Furthermore,
the judgment was delivered before the constitutional
rights became applicable.
The
Magistrate also dismissed the application for review of
the judgment
[1]
on the
basis that he exercised his discretion objectively and justly.
He also ruled that no irregularities took place and
that the order
was not illegal because the case concerned spoliation and questions
of illegality are irrelevant.
6.
The appellants launched the present appeal during February 2012. An
application for condonation for late filing of the appeal
was only
filed on 17 January 2013, a few weeks before the appeal was heard.
Counsel for the respondent informed the court from
the bar that the
application for condonation was not opposed.
7.
The grounds of appeal are:
7.1
The Magistrate made a mistake when he made a finding that the
respondent was spoliated by the appellants. Respondent had no
control
or occupation of the water and electricity and could thus not be
spoliated, alternatively, the dispute was contractual
and not about
control and occupation of a physical thing.
7.2
The magistrate made a mistake when he firstly (and correctly)
made a finding that the
causa
of supply was contractual, and
thereafter went on to decide the matter on the basis of spoliation.
7.3
The magistrate made a mistake by rejecting the appellant’s
three defenses, namely;
7.3.1 that legally
there has been no dispossession;
7.3.2 that the
dispossession was not unlawful;
7.3.3 that
restoration of control and possession was illegal and contrary to
statutory provisions.
7.4
The magistrate made a mistake by effectively ordering the
appellants to never cut off the respondent’s electrical
connection regardless of whether he fulfils his monthly obligations
or not.
7.5
The magistrate made a mistake by ordering costs on an attorney and
own client scale, and including travelling costs and advocate’s
fees, whereas it was not justified , alternatively, too severe under
the circumstances.
8.
Other than the issue of costs, the oral argument centered on the
question of the nature of the right that respondent sought to
protect
by the spoliation order. Appellants’ counsel argued that it is
a contractual right as the Magistrate has found. The
respondent’s
counsel on the other hand argued that it was a (“
gebruiksregte”
)
personal right that is to be distinguished from the contract to rent
the dwelling. I must say that the respondent’s contention
in
papers (which we accept is an incident of possession) is that this
right is included in the “verblysreg”.
9.
The respondent did not pursue his objection with regard to the
completeness of the record of appeal. Understandably so because
the
issues between the parties were ventilated in the founding, answering
and replying affidavit. Although a transcript of the
ex tempore
judgment was not made available, the reasons for judgment are clear.
BACKGROUND
10.
During 2007, the respondent and first appellant entered into a verbal
agreement in terms of which the latter was granted a right
of tenure
(
verblyfsreg)
in respect of certain premises in the farm owned
by
the
appellants. He contends that this right included use of water
and electricity that was to be supplied by the appellants.
He does
not mention whether this was against payment of a sum of money or for
free. However, he attached, amongst other things
confirmatory
affidavits filed in the eviction proceedings from which I appears
that he was granted a perpetual right to stay free
of charge. The
appellants did not clarify is issue in their opposing papers.
11.
Respondent states further that on 09 June 2011 appellants served him
with summons issued out of this court under case number
28302/11. The
appellants seek amongst other things, an order of eviction against
the respondent. He filed a notice to defend whereupon
the appellants
filed an application for summary judgment. The application for
summary judgment was not proceeded with. Appellants
granted him leave
to defend the action.
He
still resides in the premises. We were informed from the bar that the
parties are waiting a trial date for the eviction proceedings.
12.
The urgent spoliation proceedings were launched some six months
later, in August 2011. The grounds of urgency were amongst others
that he did not have drinking , or bath water, ablution facilities
and that he relied on a neighbour, Mr. Wagner for basic needs
that
require water. He also stated that he is an electronic mechanic and
often bring work home after hours, something he is not
able to do due
to lack of electricity. He also mentioned that he would not be able
to extinguish a fire in his house or in the
veld nearby due to lack
of water. He also required electricity to charge his cellphone
battery and that without a cellphone his
security is compromised
because he cannot switch on the lights or make emergency calls.
13.
The events leading to the cutting off water and electricity
connection to respondent’s premises are not in dispute.
Respondent
states that this happened on 11 February 2011 whilst he was at work.
He did not receive prior notice or warning.
14.
In their opposing affidavit, the appellants admitted that the
respondent was in possession and control of the premises, but
deny
that the use of electricity and water was part of the agreement to
occupy the said premises.
Appellants
did not offer any explanation of the nature of arrangement with
regard to the use of water and electricity. His wife
and another
deponent whose affidavit is attached to their opposing papers
contradict the explanation offered by first appellant.
15.
First appellant admitted that he cut off the electricity connection
to respondent’s premises without notice, warning
or
allowing him an opportunity to make representations. It is contended
that the water supply was not cut off, but that it automatically
goes
off when there is no electricity supply. Apparently the water comes
from a borehole and is pumped by an electric pump.
16.
The appellants (through the affidavit deposed by the first appellant)
contend that the electricity supply was disconnected because
the
connection was illegal and had become unsafe for the first appellant
and his wife. Apparently, his wife experienced a “
geweldige
elektriese skok”
whilst taking a bath sometime in the rainy
season, September 2010.
16.1
They also experienced power outages but could not locate the cause of
the problem. The first appellant, after investigations
discovered
that the problem “
le by die additionele Elekriesiteit
koppeling van die Applicant”.
After
disconnecting the cable, all electrical problems they had been
experiencing came to an end. He removed the cable because
according to him it was dangerous and illegal.
16.2
First appellant’s wife, does not support his version and
reasons for disconnecting the respondent’s electricity
supply.
Engela Elizabeth Janse Van Rensburg deposed to an affidavit
(not commissioned)
[2]
and
confirmed the problems with regard to the power outages. She
indicated further that her husband went to the respondent’s
premises on 30 January 2011. She overheard her husband’s
conversation with the respondent.
According
to her, her husband gave the respondent a final warning to pay his
arrears for electricity before 5 pm on 31 January,
failing which the
electricity supply would be disconnected. Respondent at the time owed
R8921.95 for electricity.
17.
Another uncommissioned affidavit deposed by an unnamed
[3]
“
vrou”
who describes herself as a trustee of the Albertus Janse Van Rensburg
was also filed in support of the appellants’ case.
The
“
vrou”
stated that the Trust never bought
electricity from Eskom, hence it could not supply it to respondent.
She
also stated that water is pumped by electricity and as such it could
not be supplied to respondent.
18.
The respondent contends that first appellant switched off his
electricity with a view to drive him out of the premises Although
the first appellant denies this, I find the respondent’s
version more probable. It is supported by Mrs. Van Rensburg’s
version that her husband told him to his arrears before 5 pm on 31
January. Indeed the electricity was disconnected on 01
st
February.
A
further indication that the actions were intended to drive him out of
the property is that eviction proceedings were also launched
against
the respondent some three months thereafter. This, in my view
supports the respondent’s version that the intention
of cutting
off the electricity supply was to drive him out of the property.
19.
First appellant relies on Electricity Installations Regulations to
justify his actions of cutting off the electricity supply
to
respondent’s premises. He maintains that he has an obligation,
as the person to whom the electricity was registered to
disconnect
the illegal connection because it was not safe.
This
in my view also suggests that he took the law into his own
hands because he believed he had a right to do so in terms
of
Electricity Installations Regulations issued by the Minister of
Labour on 06 March 2009 by Notice No. 242 in Government Gazette
Number 3195. He contends that the Eskom connection is in his
name and he would be criminally liable if it were to be found
that
there are illegal connections in his premises. I reject this version.
20.
Respondent filed a replying affidavit and raised objections with
regard to the affidavits of first appellant’s wife and
the
“vrou” as I have indicated above. Another affidavit
allegedly deposed by Mr. Wagner, his neighbour was not attached.
The
copy in the record only bears a police station stamp, but was not
commissioned.
21.
Respondent, in his replying affidavit disputed the applicability of
the Electrical Regulations in as far as he was concerned.
He
also challenged the respondents to produce their Eskom account and a
certificate of compliance . He also denied that the electricity
connection to his premises was illegal. He also denied that a
“
verblysreg”
was a personal servitude and that it
had to be registered.
I
have already indicated that the transcribed record was not made
available, as such we do not know how the objections were disposed.
It does not make a difference in any event because the merits of the
dispute are irrelevant in spoliation proceedings. The magistrate
gave
his reasons and it is clear that he made a finding that there was a
contract between the parties.
22.
The respondent maintains that the use of water and electricity was
acquired at the same time when he was granted a right to
use the
premises during 2007. The first respondent does not state when he
first noticed the alleged illegal connections.
Their
residences appear to be close to each other Mrs. Van Rensburg could
overhear a conversation between the respondent and the
first
appellant when he went to give him a final warning with regard to his
arrears. I find it hard to believe that the first appellant
was
unaware of the electrical connection until he discovered it
sometime in September 2010. Furthermore, the first
appellant
indicated in his opposing papers that the respondent used to do some
electrical work for him in the property.
The
most probable version is that the supply was cut off because the
respondent was in arrears.
23.
I am satisfied that the right to use water and electricity is
included or part of the “
verblyfsreg”
and not a separable contract. The denials by the respondent in this
regard do not raise a real, genuine or bona fide dispute of
fact.
[4]
24.
Respondent’s right to the supply of water and electricity flows
from the right to occupy the premises and as such it is
an incident
of the occupation.
[5]
25.
Respondent has attached confirmatory affidavits filed in the eviction
application to support his contention that the right to
occupy
included free provision of electricity and water. In this regard, I
am satisfied that the respondent has discharged his
onus with regard
to the nature of his right. Appellant’s contention that the
alleged illegal connection was discovered in
September 2011, four
years after respondent first occupied the premises is far-fetched.
25.1
I have already referred to the proximity of the houses / premises
occupied by the first appellant and the respondent.
The
version of the respondent that he has always had water and
electricity supply is more probable and credible.
[6]
26.
In their heads of argument, the appellants argue that the actions of
disconnecting the electricity supply constitute counter
spoliation
because the connection was illegal.
This
argument does not assist the appellants because there is no evidence
to suggest that the alleged counter spoliation was done
instantly. It
is common cause that the applicant had been in possession since 2007
and the electricity was cut off in 2011. There
is no evidence to
suggest that the appellants were not aware of the electricity
connection throughout these years.
27.
It was further argued on behalf of the appellants that the remedy of
spoliation should not have been granted because respondent
instituted
the proceedings after a six months delay.
This,
in my view is not fatal
In
Jivan v National Housing Commission
1977 (3) SA 890
(W) at 892H–893C
it was held that:
“
In
my view the remedy of a mandament of spolie, based on the maxim
spoliatus ante omnia restituendus est, grew as a new and distinct
concept of the Roman-Dutch law in South Africa over the last century
and a quarter, and there is no authority to state categorically
that
the order cannot be sought if the applicant had allowed a year to
elapse after the interruption of his possession occurred,
nor could
it be concluded that relief could not be refused on account of delay
to an applicant who had not delayed for a full year
to launch his
application for a mandament of spolie.
In
my view the Court has discretion to refuse an application where, on
account of the delay in bringing it, no relief of any practical
value
can be granted at the time of the hearing of such application.
In
exercising this discretion I think the bar imposed after one year in
respect of the mandament consequential upon complaint is
a guide to
modern practice.
If
an applicant delayed for more than a year before bringing his
application for a mandament of spolie, there would have to be special
considerations present to allow such applicant to proceed with his
application, and conversely, if an application was brought within
the
period of one year after interruption of the possession, special
circumstances would have to be present before relief could
be refused
merely on the ground of excessive delay.
In
the present matter the delay of eight months before the petition was
launched is not so gross, nor had it such self-defeating
consequences, that, on this ground alone, relief should be refused to
the applicant.”
After
referring to De Villiers v Holloway, (1902) 12 C.T.R 566 at p.569 the
Court said the following at 893H:
“
It
is conceivable that the delay of an applicant to bring his petition
either confirms or displays a state of mind in which the
applicant
acquiesced in the alleged disturbance of his possession, and, in such
an event, I am satisfied that he would not be entitled
to a mandament
of spolie.”
28
The respondent has been in occupation of the property and enjoying
provision of water and electricity since 2007.
Appellants,
in their version realized that there was an illegal connection of
electricity in his premises (a fact I have already
rejected) in
September 2010 but waits until February 2011 to disconnect it.
Even
after disconnecting the services, they waited until June 2011 to
bring eviction proceedings against the respondent.
In
my view, respondent was entitled to adopt a wait and see attitude
because similarly, the appellants did not act instantly when
they ,
in their own version realized that he was utilizing electricity
illegally.
LEGAL
PRINCIPLES OF
MANDAMENT VAN SPOLIE.
29.
The historical principles underlying mandament van spolie were laid
down in the judgment of Innes CJ in Nino Bonino v De Lange
[7]
as follows:
“
It
is a fundamental principle that no man is allowed to take the law
into his own hands; no one is permitted to dispossess another
forcibly or wrongfully and against his consent of the possession of
property, whether movable or immovable. If he does so, the
court will
summarily restore the status quo ante, and will do that as a
preliminary to any inquiry or investigation into the merits
of the
dispute”
30.
The principles as enunciated in the historical case of Nino Bonino
remain constant, however, the controversy that gives rise
to
differing view points in various judgments is the classification of
the nature of the right that the remedy seeks to protect.
In
the Namibian appeal case of
Horst
Kock t/a Ndovu Safari Lodge v R Walter t/a Mahangu Safari
Lodge and Others
[8]
, LANGA AJA examined historical and current authorities on the remedy
of
mandament
van spolie.
Langa
AJA summarized the various judgments as follows:
[4]
The remedy has found recognition in the modern Namibian common law
(Ruch v Van As
1996 NR 345
(HC) and it is trite that it is available
to protect possession. (Kuiiri and another v Kandjoze and others
2007
(2) NR 749
; Nino Bonino v De Lange
1906 TS 120
; Nienaber v Stuckey
1946 AD 1049
; Yeko v Qana 1973(4) SA 735 (A); Shoprite Checkers Ltd v
Pangbourne Properties Ltd 1994(1) SA 616 (W)). What gives rise
to
controversy is the nature and ambit of the remedy. What is clear
is that since it is a possessory remedy, it serves as a counter
against spoliation. (Silberberg and Schoeman: The Law of Property,
5
th
edition at 287).
Its
purpose is to provide robust and speedy relief where spoliation has
occurred to restore the status quo ante because, as stated
by Van
Blerk JA in Yeko v Qana
,
1973(4) SA 735 (A), of the
“...fundamental principle that no man is allowed to take the
law into his hands and no one is
permitted to dispossess another
forcibly or wrongfully and against his consent ‘of the
possession of property, whether movable
or immovable’ ....”
In Shoprite Checkers Ltd v Pangbourne Properties 1994(1) SA 616 (W)
Zulman J stated:
“
It is
trite that the purpose of the mandament van spolie is to protect
possession without having first to embark upon an enquiry,
for
example, into the question of the ownership of the person
dispossessed. Possession is an important juristic fact because
it has legal consequences, one of which is that the party
dispossessed is afforded the remedy of the mandament van spolie...”
[5] Does the
protection of the mandament van spolie extend to incorporeals?
In Nienaber v Stuckey 1946 AD at 1056 it was held
that the possession
of incorporeal rights is protected against spoliation and in Bon
Quelle (Edms) Bpk v Munisipaliteit van Otavi
1989 (1) 508 (A), the
Appellate Division of South Africa held that the mandament van spolie
is available for the restoration of
lost possession in the form of
quasi-possession which, in that case, consisted in the actual use of
a right of servitude.
I understand this to refer to the limited
role of the mandament van spolie and to mean that although an
incorporeal thing
like a servitude was incapable of physical
detention, it was indeed capable of being quasi-possessed by the
actual use of the servitude.
Hefer JA stated that, “[t]he
status quo that the spoliatus desired to restore by means of the
mandament van spolie was the
factual exercise of the servitude, and
not the servitude itself.” What one extracts from
these decisions, and
others such as Shoprite Checkers supra, Zulu v
Minister of Works, KwaZulu and Others,
1992 (1) SA 181
(T) is that
the true purpose of the mandament van spolie is not the protection
and vindication of rights in general, but rather
the restoration of
the status quo ante where the spoliatus has been unlawfully deprived
of a thing, a movable or immovable, that
he had been in possession or
quasi-possession of. Thus in Zulu, where the applicant had
sought an order for the respondent
to supply him with water, the
Court held that the applicant had never had possession of the water
and could not therefore found
his claim on loss of physical
possession. Mandament van spolie had no role there.
As a concept or a form of relief,
it is not concerned with the
protection of rights “in the widest sense” but with the
restoration of factual possession
of a movable or an immovable.
This extends to incorporeals such as the use of a servitudal right.
It is the limited nature
of the scope of the mandament van spolie
that excludes, for instance, the right to performance of a
contractual obligation from
its operation. (See also Plaatjie and
Another v Olivier NO and Others,
1993 (2) SA 156
(O) at 159F). These
principles, with which I respectfully agree, were further clarified,
specifically in relation to quasi-possession,
in ATM Solutions (Pty)
Ltd v Olkru Handelaars cc and Another,
2009 (4) SA 337
(SCA) at 340 -
341 where Lewis JA quoted with approval remarks by Malan AJA in the
First Rand Ltd t/a Rand Merchant Bank and Another
v Scholtz NO and
Others,
2008 (2) SA 503
(SCA) at p 510:
“
... The
cases where quasi-possession has been protected by a spoliation order
have almost invariably dealt with rights to use property
(for
example, servitudes, or the purported exercise of servitudes ... or
an incident of the possession or control of the property.
The law in
this regard was recently succinctly stated in First Rand Ltd v
Scholtz (footnote omitted) where Malan AJA pointed out
that - ...
[t]he mandament van spolie does not have a ‘catch-all function’
to protect the quasi-possessio of all kinds
of rights irrespective of
their nature. In cases as where a purported servitude is concerned
the mandament is obviously the appropriate
remedy, but not where
contractual rights are in dispute or specific performance of specific
obligations is claimed. Its purpose
is the protection of
quasi-possession of certain rights. It follows that the nature of the
professed right, even if it indeed not
be proved, must be determined
or the right characterized to determine whether its quasi possession
is deserving of protection by
the mandament.” (See also
The Three Musketeers Properties (Pty) Ltd and Another v Ongopolo
Mining and Processing Ltd
and 2 Others (unreported) Supreme Court
case SA 3 of 2007.
Finally,
spoliation is committed also when a co-possessor unlawfully takes
over exclusive control of the thing. (See Du Randt v
Du Randt
1995
(1) SA 401
(O)”
31.
Even assuming that there was a tenant and landlord relationship
between the parties, appellants would not have been entitled
to
simply switch off the water supply and cut off the electricity
connection without affording the respondent an opportunity to
make
representations or at
least
give him a warning or notice. Of course the nature of the notice or
warning would depend on the terms of the agreement. In
the matter of
City of Cape Town and Marcel Mouzakis Strumpher,
[9]
the appeal court held that spoliation proceedings were the correct
remedy under the circumstances because the appellant had disconnected
services not only in contravention of the respondent’s
constitutional rights to water, but also its own dispute resolution
procedures.
32.
The facts of this case are distinguishable from the cases which
appellant seeks to rely on. In casu, the right to occupy the
premises
is linked to the provision of water and electricity, unlike in the
First Rand Limited
[10]
case
where the appeal court found that the respondents were disposed of a
contractual right that had expired.
The
Water Conveyance Agreements were separate from any other rights,
statutory or otherwise that they had. These agreements were
separate
and entered into at intervals. The situation in that case would not
be applicable or similar to most landlord and tenants
agreements.
33.
I have already made a finding that the provision of water and
electricity in this case is an incident of possession and occupation
of the premises. As such, I do not agree with the appellants that
respondent sought to enforce a contractual right by way of spoliation
proceedings.
In
the ATM Solutions
[11]
case,
the appellant sought re-installation of its ATM machines, and by the
nature of the relief sought, it is clear that this is
a case of
specific performance. The appeal court correctly held that an order
of mandament van spolie was not the correct remedy.
WHETHER
RESTORATION OF RESPONDENT’S POSSESSION PERPETUATES AN
ILLEGALITY
34.
Appellants contend that restoring respondent’s possession would
perpetuates commission of an offence by the first
appellant
because he is obliged by the Electricity Installation Regulations to
ensure that there are no illegal connections and
that the connections
are safe. Failure to comply, so the argument goes, exposes him
to criminal prosecution to which he may
be fined or incarcerated in
prison.
In
the matter of
Ivanov
v North West Gambling Board
[12]
,
the issue was, amongst others whether possession that was prohibited
by statute, notably, the National Gambling Act should
be
restored by spoliation order.
The
appeal court, per Mhlanta JA, held
[13]
that:
“
the
aim of spoliation is to prevent self-help. An applicant upon proof of
two requirements is entitled to a mandament van spolie
restoring the
status quo ante. The first proof that the applicant was in possession
of the spoliated thing. The cause for possession
is irrelevant- that
is why possession by a thief is protected. The second is the wrongful
deprivation of possession. The fact that
possession is wrongful or
illegal is irrelevant, as that would go to the merits of the dispute”
The
court referred to various old authorities, amongst others Bon Quelle
(edms) BPK v Munisipaliteit van Otavi
[14]
wherein the following was stated:
“
Die
mandament van spolie is n’ besitsremedie waarvan die beperkte
en uitsluitlike funksie is om die herstel van status quo
ante te
bewerk-stellig (Oglodzinski v Oglodziski
1976 (4) SA 273
(D) op
274F-G) en daarom kom dit nie daarop aan dat die spoliator n’
sterkter aanspraak op besit as die gespolieerde mag
he nie of dat
laasgenoemde inderdaad geen reg op besit het nie. Die beginsel is
eenvoudig: spoliatus ante onmia restituendes est
ongeag die partye se
daadwerklike regte op besit”
OTHER
DEFENCES RAISED
35.
Appellants contend that the respondent was not in peaceful
possession. Their argument is mainly based on the fact that the
electrical supply was connected illegally. However, and as various
authorities indicate, the cause of possession is irrelevant.
36.
The next question is whether the dispossession was wrongful. It is
abundantly clear from the evidence and appellants’
own version
that the first appellant believed that he had a right to disconnect
the electricity
supply
because he was ultimately accountable to Eskom for any illegal
connection in his property.
As
I have already indicated above, the question of illegality is
irrelevant.
37.
The next issue for consideration is the finding by the magistrate
that the respondent’s cause of action was contractual.
The
appellants contend that this finding was correct, however, the
magistrate erred by granting a spoliation order because it amounts
to
ordering specific performance. This argument is self-destructive
because on the other hand the appellants deny the existence
of a
contractual relationship for provision of water and electricity.
38.
Although the magistrate has mischaracterized the cause of action,
this does not detract from the fact that spoliation order
was the
correct remedy under the circumstances.
39.
Appellant’s counsel argued that there were dispute of facts
with regard to the issue of the contract and that the Magistrate
should have referred the matter for oral evidence. We were urged that
the correct order to make under the circumstances is to refer
the
matter back for oral evidence in this regard.
This
approach or such an order in my view would defeat he purpose of
spoliation proceedings. Going into the disputes would obviously
delay
the proceedings. We were advised from the bar that the eviction
proceedings are pending. This is where the merits of
respondent’s
contentions that he was granted free access to water and lights will
be examined. Theirs was an oral agreement,
as such they will have an
opportunity to prove the terms thereof.
40.
I am satisfied that the respondent was entitled to an order of
mandament van spolie.
I
would accordingly dismiss the appeal; save to the extent set out
hereunder with regard to costs in the court a quo.
COSTS
41.
The last issue for consideration is costs. Appellant’s counsel
argued that even if the respondent were to succeed, costs
should not
follow the event because the Magistrate mischaracterized the nature
of his right as contractual. It was argued further
that the
appellants were entitled to approach the court because the order is
incorrect if the findings made by the magistrate (with
regard to the
nature of the respondent’s rights ) is correct.
I
have already stated that the mischaracterization of the nature of the
right is of no consequence because I have accepted the version
of the
respondent as more probable than that of the appellants. The
appellants’ case is founded on the opposing affidavit
deposed by the first appellant. On his version, he cut off the
electricity because it was illegal and not safe. His wife and another
deponent introduced different versions. His wife came up with
an allegation of arrear payments for electricity as the reason
for
cutting off the electricity.
The
respondent alleged, and attached affidavits to the effect that he was
entitled to free electricity and accommodation. The onus
then shifted
to the appellants to gainsay this.
Even
on their own version, the respondent, in my view was entitled to
prior notice and warning.
42.
Appellants contend that there was no justification for the punitive
cost order that included counsel’s travel time and
costs. In
the alternative, it was argued, the cost order was harsh under the
circumstances.
43.
The respondent’s counsel on the other hand argued that the cost
order made by the Magistrate should not be disturbed because
the
appellants acted with mala fide when they cut off the electricity and
water supply to respondent’s premises. This was
done to force
him out of the property.
44.
Although I have excused respondent’s delay in launching the
spoliation proceedings, I do not think that the punitive cost
order
was justified.
Appellants
realized that they were wrong to take the law into their own hands,
and although they did not restore the electricity
voluntarily, they
instituted eviction proceedings to resolve the impasse between the
parties. The spoliation proceedings were instituted
two months after
the eviction proceedings.
45.
The magistrate did not give reasons for the punitive cost order or
why counsel’s travel time and costs should be borne
by the
appellants. There is nothing in the record to at least give us an
indication of how the magistrate exercised his discretion
with regard
to costs.
46.
For these reasons, I think the appeal in as far as the punitive cost
order is concerned should succeed.
47.
On the question of costs of this appeal, I do not think that
appellants’ success is sufficient enough for them to escape
paying costs. For this reason, respondent is entitled to costs of
appeal.
48.
The order of the magistrate is substituted as follows:
“
Die
aansoeke om mandament van spolie word toegestaan soos versoek, met
kostes op party en party skaal”
49.
In the premises, I make the following order:
49.1 Condonation for
late filing of the appeal is hereby granted;
49.2 Save for the
punitive cost order, the appeal is dismissed with costs.
MAKHUBELE
AJ
Acting
Judge
I
agree
ALBERTS
AJ
Acting
Judge
APPEARANCES:
APPELLANTS:
Advocate
Z Schoeman, instructed by Marius Coertze Attorneys.
RESPONDENT:
Advocate
A Le R Stemmet, instructed by D S Goosen Attorneys.
[1]
This did not form part of the record before us.
[2]
Page 88 of the record
[3]
p.87 of the record
[4]
Room Hire Company (Pty) ltd v Jeppe Mansions (Pty) ltd
1949 (3) SA
1155
(T) at 1163-5
[5]
See : Naidoo v Moodley 1982(4) SA 82 (T), Froneman v Herbmore Timber
and Hardware (Pty) Ltd 1984 (3) SA 609 (W)
[6]
Plascon Evans Paints v Van Riebeck Paints 1984 (3) SA 623 (A)
[7]
1906 TS 120
at 122
[8]
SA 20/2009
[2010] NASC 12
(26 October 2010)
[9]
(104 / 2011) {2012} ZASCA 54 (30 March 2012).
[10]
First Rand Limited t/a Rand Merchant Bank and Another v Blyde River
Water Utility and Others
2008 (2) SA 503
(SCA) at paragraph 16.
[11]
ATM Solutions (Pty) Ltd v Olkru Handelaars CC and Another 2009 (4)
SA 337 (SCA).
[12]
2012 (6) SA 67
[13]
Paragraph 19
[14]
1989 (1) SA 508
(A)